Jones v. Atlantic Coast Line R. Co.

• Decision Date: 14 October 1908
• Parties: JONES v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

62 S.E. 521

148 N.C. 449

JONES v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

October 14, 1908

Appeal from Superior Court, Craven County; W. R. Allen, Judge.

Action by J. A. Jones against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Civil action to recover damages alleged to have been sustained by plaintiff in shipment of a car load of horses and mules. These issues were submitted to the jury: "(1) Was the mule in controversy delivered to the defendant? Ans. No. (2) Was the gray horse in controversy injured while in possession of the defendant? Ans. Yes. (3) Were the 23 animals delivered by defendant to plaintiff injured while in possession of defendant? Ans. Yes. (4) If so, was said injury caused by the negligence of the defendant? Ans. Yes. (5) What damage, if any, is plaintiff entitled to recover? Ans. $313.25." From the judgment rendered the defendant appealed.

In an action against a carrier for injury to a live stock shipment the record of a conductor who handled the shipment between intermediate points, showing that there was no exception to the condition of the stock at the time of its handling, was properly excluded, where the conductor did not testify though, if he had testified, the record would have been proper to corroborate him.

Moore & Dunn, for appellant.

R. A Nunn and W. D. McIver, for appellee.

BROWN J.

The evidence tends to prove that there was delivered to defendant a car load of horses at Augusta, Ga., for shipment to plaintiff at New Bern, N. C.; that the stock were in good condition when delivered to defendant, and that when the car arrived at New Bern the animals were in a very bad condition, much worse than stock generally are at the end of a long journey; that one horse was dead in the car, and the others badly bruised and much injured. For the purpose of proving the condition of the stock when transferred from one freight conductor to another on different parts of its system, the defendant offered in evidence "the original record of Conductor E. D. Skinner, handling this shipment from Florence to Wilmington, showing that there was no exception to the condition of the stock at the time of its handling." This was excluded, and defendant excepted. We have held that a record containing entries made in the usual course of business on the train sheets by the witness (a train dispatcher) from reports telegraphed to him by station agents as to the arrival and departure of trains is admissible for the purpose of showing the position of a train at a certain time. Insurance Co. v. Railroad, 138 N.C. 42, 50 S.E. 452, 107 Am. St. Rep. 517. The evidence offered by defendant is far from coming within the principle of that decision. The record was made in that case by the witness himself, who was under oath and subject to cross-examination, and the witness identified it as the record made by him, showing the movement of trains. The report of the case shows that "the record was offered by defendant in corroboration of witness Hunt, and the court admitted it for that purpose, so instructing the jury." Page 45 of 138 N. C., page 452 of 50 S.E. (107 Am. St. Rep. 517).

Waiving the confusion in the record as to the identification by proof of this "original record," it is certain that the defendant did not offer Conductor Skinner to prove the...